I’m Bitching and Moening

Today I want to continue with yesterday’s post by looking at another ADA case. This one, while quite disappointing, doesn’t really rise to the level of the judge cheating.

It is also a case that gets closer to something that a barefooter would care about.

The case is Moen v. Genesee County Friend of the Court, and it comes to us from the Eastern District of Michigan, decided in July of 2009.

Jodi Moen was an employee of Genesee County Friend of the Court. Yeah, that’s a weird name. What they do is investigate domestic relations cases that come up before the local court. If a minor child has a custody issue, or there is a case with visitation rights, or late payment of child support, they’ll go out and investigate it and then provide the court with that information.

At this point I’d like to point out that most (but not all) of the cases that go to court under the Americans with Disabilities Act As Amended (ADAAA) seem to be employment cases. It seems that, as a general rule, most public accommodations do a fairly decent job of providing access to the disabled and are willing to adapt their policies in that regard. But when it comes to employment, there is a combination of companies being hard-nosed with their employees AND of the employees trying to use the ADAAA and a claim of retaliation when the employee has done other stuff that might justify discipline. (We saw that in the case I highlighted yesterday.)

I’d also like to add another fact about the ADAAA. There are three different “Titles” (sections of the law) that come into play, depending on what kind of entity is supposedly discriminating against the disabled. Title I applies to employment (mostly). Title II applies to public services (which means local and state governmental units). Title II also applies to employment by governmental units. Title III applies to non-public accommodations, like stores. Title I is enforced by the Equal Employment Opportunity Commission and Titles II and III are enforced by the Department of Justice; the different Titles have slightly different federal regulations that apply.

Yesterday’s case, Swann v. US Foods, fell under Title I. The Moen case fell under Title II, since Genesee Friend of the Court is a local governmental entity.

Jodi Moen’s problem was heel pain and tendinitis.

Foot pain is a subject near-and-dear for many barefooters (including this one), since they were driven to going barefoot by it. They discovered just what shoes do to feet (and knees and hips and . . .) and then found out that removing the shoes really, really helped.

Now, in Ms. Moen’s case, the prescription she got from her doctor wasn’t to go barefoot (darn!), but to wear athletic shoes.

A Prescription for Athletic Shoes

So she got herself a nice pair of new, white athletic shoes . . . and got in trouble. She got a note from (anti-)human resources:

This letter concerns the medical notice restricting your footwear to athletic shoes only for the next three months. As part of the essential functions of your assignment as Friend of the Court caseworker, you are required to appear in court. Your attendance in the court room does necessitate proper attire, which also refers to footwear.

Oh, yeah. It’s that old “proper attire” again. (Where have barefooters heard that before?) And by the way, nowhere in the court documents is there a copy of any proper attire rule, or what constitutes “proper attire” or how white athletic shoes violate it. I strongly suspect this was just another example of the sort of intolerance we often see, and a special rule made up on the spot.

Were the judges offended?

No.

Here’s a letter from one of the judges:

It has been brought to my attention that caseworker, Jodi Moen, has been directed by her doctor to wear a tennis-type of shoe due to a foot malady. I do not have an issue with Ms. Moen wearing a clean, white, professional-type, tennis shoe in my courtroom when she is before me on Friend of the Court cases. Ms. Moen provides a great service to this court and I would not find this offensive to the court, as I would not for attorneys in a similar situation.

Of course that wasn’t good enough. According to her bosses, Ms. Moen had to have special black orthopedic shoes made, and while she was waiting for them to be made (about 10 days), she was not allowed in the courtroom (under orders from her boss, not the judge).

Ms. Moen then filed an ADA complaint with the EEOC. And was immediately charged with leaving work early a few times. Her lawsuit was then based on the idea that the discipline was in retaliation for filing the ADA complaint.

Just as in yesterday’s case, Ms. Moen lost on summary judgment, with the judge in this case saying that she had not shown that she was disabled because she was not substantially limited. Here’s what the opinion says (citations removed):

The Court recognizes that Penny [the court case that said “moderate difficulty or pain experienced while walking does not rise to the level of a disability”] was decided before the enactment of the ADA Amendments Act of 2008, which substantially expanded the definition of “disability.” The ADA Amendments Act, however, does not apply retroactively to conduct that occurred before its enactment. Most of the conduct that Moen here complains of took place in 2007, and is therefore unaffected by the Act. In any event, no matter how far the Act broadened the universe of conditions that can qualify as a substantially impairing a major life activity, it did not eliminate the substantial-impairment requirement altogether. Thus, a plaintiff like Moen who states that a medical condition caused her some pain and discomfort, but who offers no evidence at all of any concomitant impairment in her activities, must be held to have failed to state an ADA claim under either the pre- or post-amendment standard.

As you can see, the judge said that even though the amended version of the ADA did not apply (so he didn’t cheat), even if it did apply, Moen had not shown a substantial impairment.

First, we should note that the statute talks about “substantially limited”, not a “substantial impairment”. There is a difference.

And then, if Moen gave no evidence of impairment, just what evidence did she give?

I got a copy of her deposition and here’s what she said:

Q. Well, what occurred on 9-20-07 which led you to see Dr. Moody concerning your feet?

A. Well, every time I walked my left foot felt like I was stepping on a marble.

Q. So your left foot walking it felt like you were what2

A. Stepping on a marble.

Q. Marble meaning a glass spherical item that you might play with as a child you mean?

A. Correct.

Q. And it was your left foot or both your left foot and your right foot that had that same condition?

A. Just my left foot.

Q. Just your left foot. How long had you noticed that particular phenomena if you will prior to 9-20-07?

A. About two months prior.

Q. It was developing ovor about two months?

A. Right.

Q. And did it appear to you as if the condition was getting worse over that two months or once it began was it essentially the same?

A. It got worse.

Q. And when you say it got worse, what do you mean by that? What happened?

A. It would hurt more, you couldn’t put as much weight on it.

Q. So the pain became more intense?

A. More intense.

Q. And was the pain located in one particular area of your foot?

A. A little bit to the right of my heel on my left heel, to the right of the middle.

Q. So it was on your first of all the heel area of your left foot?

A. Correct.

Q. And was it located in your heel area or was it forward of your heel area?

A. In my heel area.

Q. In your heel area, all right. And was it to the right or left side of your foot, do you recall?

A. Towards the right.

Q. Toward the right which would be in terms of the way your foot is setup to the inside of your foot?

A. Correct.

Q. And that condition once it began about two months before September 20 of 2007, it progressively got worse, more pain?

A. Yes.

Q. And is Dr. Moody the first doctor you saw for that condition?

A. Yes.

That sure sounds to me like more than the “some pain and discomfort” that the judge referenced (in the opinion the marble was also mentioned).

But no, nobody asked her how this pain, this pain like stepping on a marble, this pain that got progressively worse, limited her walking. They didn’t ask her how she was impaired.

So the judge, inhumanely, was able to say with a straight face that Moen had not demonstrated any substantial impairment. I guess he’d never had to deal with foot pain before, right?

Let me now try to relate this to how a barefooter (for whom it was relevant) might try to use the ADAAA. On the whole, I suspect it would be a tough sell (so after reading a bunch of court cases I am more pessimistic than I was in The Americans with Disabilities Act and the Barefooted). It’s clear that there is a lot of ingenuity that judges use so that they don’t have to apply the ADAAA. And for going barefoot because of pain and difficulties? I suspect it even more likely for that.

There’s another area that I haven’t mentioned before that is just ripe for that sort of ingenuity. The ADAAA makes a big deal about how businesses, etc., have to allow reasonable accommodations. But much of that is couched in auxiliary aids. You are still “disabled” even if that disability can be corrected with auxiliary aids. However, auxiliary aids are added, not subtracted, which is what a barefooter wants regarding footwear. I can see some court saying that, if the disability is corrected by subtracting footwear, not by adding an auxiliary aid, it is not really a disability. That goes entirely against the broad interpretation of the ADAAA that Congress’ intent, but I still worry about whether a court might disqualify a barefooter as being disabled because of that.

I’d also like to address that word “substantial”. Does it really mean some sort of large amount?

Legally, generally not. When it comes to evidence,

Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

(Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938).)

I’ve also argued that, for the purposes of the ADAAA, “substantial” simply means “having substance” or “real”.

There is another context in which the word “substantial” is used, and that is in the Religious Freedom Restoration Act (RFRA), which prohibits the federal government from “substantially burden[ing]” one’s exercise of religion. In its 2015 decision, Holt v. Hobbs, the Supreme Court held that requiring Holt to shave his beard was a substantial burden (because he was threatened with disciplinary action if he did not comply).

As far as I can tell, having to deal with pain is a substantial limit on ones abilities. It affects everything one does. One walks differently. One gets up in a different fashion. I feel it every day.

So, winning an ADAAA case as an eligible barefooter might be difficult. Generally, most places like public services or public accommodations are pretty accommodating. But when you come across an intransigent one (like Genesee Friend of the Court, or many libraries), the option for suing them under the ADAAA could be, well, burdensome.